Is Your Employee Handbook a Ticking Time Bomb?

Posted by: Adair M. Buckner

Reviewing your handbook periodically is always a good idea to be sure it has kept pace with changing laws. 

Right now, however, if your employee handbook has not been updated in the past six months or so, it is not only out of date, it may have become a source of liability. 


Key Employee Handbook Targets

Here are just a few things you need to be looking at:

  • Is your at-will employment statement an invitation to a NLRB unfair labor practice charge (ULP)?  NLRB rulings have said that, if it is not worded correctly, it can be considered a violation of rights of all employees, union or non-union, under the NLRA.

  • Does your handbook still contain archaic prohibitions on discussion of pay and benefits?  The NLRB long has said this violates Section 7 employee rights to engage in concerted activity regarding terms and conditions of employment.  It is pursuing ULP’s based on this provision in handbooks.

  • Do you spell out clear rules prohibiting unauthorized overtime and off-the-clock work? This is fertile ground for wage and hour lawsuits. You still have to pay if these rules are violated, but it should at least be grounds for discipline.
  • If you are subject to FMLA, has your policy been updated to reflect the rights of same-sex marriage couples to FMLA leave?

  • Do your FMLA policies contain the correct provisions for time off for employees with relatives in the military?  Do you have the most current FMLA forms?

  • Do your confidentiality, loyalty, no-gossip, civility, or social media policies include language that the NLRB says violates Section 7 employee rights and can land you in a ULP?

This Is Real - Not Theoretical

I recently defended a small employer on ULP’s based on several of these employee handbook provisions that the NLRB has declared illegal. 

These are not just theoretical problems or ones for large employers in big cities.  The battle has moved here!!  Defense of a ULP or other legal action based on outdated handbook provisions is a very costly and painful procedure and one to be avoided if at all possible. 

I urge you to do a careful review of your employee handbooks sooner rather than later—when the NLRB, DOL, or EEOC is staring down the barrel of its guns at you.


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